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tv   Book TV  CSPAN  October 16, 2011 12:00pm-1:00pm EDT

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>> but if you look at these examples, pakistan, this area north of waziristan, not just for american troops but even for pakistani troops, they are not going after the militants in those areas for various reasons. if you look at yemen now, the central government even with the return of president saleh is still collapsing largely. it has drawn in american trained
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counterterrorism forces to defend the capital leaving more space of yemen for the al qaeda affiliate told onto. there are no, you many troops out there trying to combat the forces. in somalia itself there is a week, non-existent government in mogadishu. this group has shown indications it has a national agenda to attack outside its boundaries of somalia. the policy that this administration followed on the bush administration, if we can't get local allies, oftentimes undependable or reliable allies to go after this threat, to go after those groups that are specifically targeting the united states and american interests, then we, the united states government, have to do something about that. one of the only tools at our disposal immediately are the drones. we talked about a wide range of other things.
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diplomacy, counterinsurgency, these things take time and a lot of effort and a lot of money to be honest. yes, those are probably better long-term solutions but if you face a short-term problem and our imminent threat to this country, what do you do about it if those countries where these terrorists are living and working and operating? if those countries can do with it, the united states feels like they have to go after. unfortunately, one of the few tools they have to to go after them with drones, airstrikes and those type of things. not the best solution. >> thank you both for a fascinating talk in your excellent reporting. [applause] >> is there a nonfiction author or book you would like to see featured on booktv? send us an e-mail at booktv@c-span.org. or tweet us at twitter.com/booktv. and they know ♪ ♪
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♪ >> coming up next, booktv presents vie "after words." this week susan herman and her new book, "taking liberties: the war on terror and the erosion of american democracy." in it, ms. herman asserts that antiterrorism laws such as the patriot act have damaged the lives of many citizens. the aclu president also argues that president obama has relied on secrecy to maintain these laws, just as his predecessor did. she discusses her findings with former assistant attorney general and georgetown law professor viet dinh. >> host: susan herman, professor of law and the last three years present of aclu. you have written a very good, very well-written, very clear compilation of a number of
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stories that have transpired over the last decade as a america responded to the threat of, continuing threat of terrorism after 9/11. the book is very timely. it is out this week, this month, called "taking liberties: the war on terror and the erosion of american democracy." now, right thing americans will naturally differ regarding the activities and the consequences of terrorism and our responses to it. i think what is really important is that we know the facts and we know the stories behind the facts. i think you have accomplished that, telling the stories clearly, and especially about the same time, not losing an advocate edge. after all, you're the president of the aclu. i thought we'd start simply by talking about some of the stories that you have compiled, the stories of ordinary
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americans. sometimes not so ordinary activities, and responses and the system they find themselves into trendy thank you on those comments on the book mean a lot to me. i wrote this but because i think most americans are not really aware of the fact the kind of policy we started after 9/11 often do have costs. people aren't aware. people sometimes know the individual stories but i thought it was important to put them all together so you can draw and see patterns. in the first chapter, i call the chapter the webmaster of the football player because it's about two men, one of whom is he an american citizen and one who is not. finland both midwestern college students? >> guest: idaho. they had met at the university of idaho. the first gentleman was a man named -- he was an exchange student who's going to idaho, a land grant school because he was studying computer studies. while he was there he was a muslim, not surprising, and 9/11
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took place. he was somebody who lit a candle light vigil to protest that these people were beginning to associate muslims with radical jihad and 9/11. he wanted people to understand that is not the most of islam. most muslims are very peace loving people. so he was working with an organization, and they were trying to get people to understand more about islam. because he was a computer person he served as webmaster. one of the things he did on their website since there trying to get people information so they could find out more, get all the facts about islam, was he posted links to various things people had written, including links of people explaining why they got jihad was a good idea. a whole range of different links. so at some point they came under investigation by the fbi, and after a lot of wiretaps, electronic surveillance, reusing no, they didn't come up with a
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lot of evidence that he was part of a sleeper cell in idaho they thought they discovered. and to me this story is really about -- family was there a sleeper cell? >> guest: there was not. when you think you have something, people of good faith, governments can start reaching backward and jumping to conclusions. they thought partially because he was making donations to muslim charities, because that's part of what it means to be muslim, they just thought they found a sleeper cell in idaho. they end up prosecuting him for mattress support of terrorists. what he had done really his action was to post these links on the website. >> host: the fbi affidavit and the charging documents allege that he had facilitated the recruitment of terrorists through the dissemination of the propaganda through the internet. and also attempted to actually try to solicit funds for these terror organizations through his
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own contributions to the charity. did he illicit funds? >> guest: one of the facts of alleged against him was there was a link to other websites that you could make contribution to the terroristic his lawyer put out at trial that link have been disabled before he was involved with the project. his contribution was not to anything on the blacklist. there was no sure he was supporting terrorism and sell. the fbi's three begin to shift in the case as they went along. at first they said he was supporting al qaeda and many said no, it was hamas. then they said no, it was checked and rebels. so we came down to, the only concrete evidence he had done that could remotely be imaginative supporting terrorism was that it made it possible for people to read ideas and people might then be convinced of the ideas and decide to support terrorists. >> host: and he contributed support by providing the links
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to the other websites, which had no part in creating? >> guest: he had no part in creating, and i think that in practice or decision is working with, the islamic a simple as not on any blacklist. no one suspected them of anything. what it came down to as his lawyer was arguing to the district court was that he was just being prosecuted for speech time and let me ask you a question. the link that supports jihad that is the basis of his support for this terrorism, was that link posted by a group that is designated on a blacklist of some sort? >> i'm not sure what link their talk about because india and the government didn't connect them with that link. just affect someone else had a link to a link, how can you prosecute him for supporting terrorism? what his lawyer told the jury, the lawyer argued to the jury that if you can prosecute him for posting links to the speech
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of jihad, you can prosecute in your times saying this is why but we believe what we believe. what i thought was fascinating was we think of idaho as a pretty conservative state, and the jurors in this case, typical idaho residents, one was a retired forest worker. and after think about the first amendment and what the government was arguing, the jury and a rapid time to quit him. one of the jurors said this is just about people talking, about saying what they think in enabling other people to talk. it's about the conversation. >> host: the first amendment protection for the new york times is a great interest in and out of an argument. why did this judge reject that? >> guest: it's interesting. we don't know the answer to that question. the lawyer told me the judge had said after declined to dismiss the case, the judge said an opinion would follow but no opinion ever followed. unfortunately, we hope the judges are going to act as
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gatekeepers here. what i think is wonderful, a tribute to the american constitution is that it was the right to jury trial that came into play here. the jurors did acquit him of that charge's. >> host: one way to distinguish the posting of links to, let's say for the sake of argument, clearly jihadists website, from "the new york times" op-ed being signed by hamas clearly designated terrorist organization under our system is that the posting of links is more like the passing out of leaflets, facilitating the message of the jihadists website rather than in a publication, being a true first amendment purveyor like in your times. could that be what the judge was thinking? >> guest: i don't know what the judge was thinking but it seems to be the internet is different from a newspaper. at anybody can be prosecuted for speaking, including "the new york times" on its own website
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if they have a hyperlink to something else. at that point seems to me it's not consistent with the first amendment ideas, the people of the right to listen to all kinds of speech and make up their own minds, for the government of this series of making it too easy for people to confront ideas that they might lead them do a path to somewhere else. >> host: what about the mattress support aside the speech activities? what about the material support that the government alleged with his own contributions or the contributions if not for others? >> guest: the jury didn't think they got it made out its case. you're looking as probably as a lawyer, at what the government alleged. i interviewed people who are on the idaho campus at the time and nobody ever believed that hosam maher husein was a terrorist. they thought the government misunderstood, kind of had gotten this led to everybody said he was the gentlest person. they just could not believe that he was involved in this. plus the other thing in this case was he was arrested, i
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think is 4 a.m. or 5 a.m. when about 100 federal troops stormed the campus. and in addition to arresting hosam maher husein on this charge, plus immigration violations, they also interrogated all of the people they called his associates. all the other arab and muslim students at idaho. and the terrified people. everybody in the town apparently, liberals and libertarians alike were pretty horrified. the government was in we found a sleeper cell in idaho. i think it was a mistake. it was wishful thinking that you could find something. >> host: the other associates what not charge. just to close the chapter, and he was acquitted, but he was convicted of immigration violation. >> guest: he was not convicted. and the jury mistrial. the theory of that was that he was not genuinely a student because he he was also working with this islamic assembly of
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north america. they said he was violating, that he wasn't really a student. but just to give an example of the kind of wishful thinking that goes on, one thing that one agency was suspicious. very, very was he wasn't a serious student and he was only in the country because he was really a terrorist and he was pretending to be a student. one agent i think west point to the fact that he switched his dissertation advisor in the middle of the year. they said nobody does that. that must mean he's not serious. it turned out if they look hard his advisor had cancer and he switched his advisor because his own -- he was trying so hard to finish his dissertation. he was almost through. he ended up agreeing to go back to saudi arabia they shipped his wife and child. it was a pretty horrific extremes. i can tell you what he is now. he's in saudi arabia scratching his head trying to match what happened to him with his lifelong concept that america is
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the land of the just and the troop. >> host: notwithstanding the mistrust, he voluntarily agreed to return with his family. >> guest: because his family had already gone back drama and has he continued his education? >> guest: he was never able to. i think was in solitary for 17 months. his families back in saudi arabia and he was trying to work on his dissertation. >> host: you mentioned throughout the story that the fbi was working backwards, and thinking backwards. and certainly the jury seems to agree that he should be acquitted of these charges. how did he come to the attention of the fbi or the investigators regardless of what mistakes they made? what was the initial red flags? >> guest: it seems he was make contributions to muslim charities. but, of course, as you know that's one of the pillars of
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islam to donate to charity. but let me give you a different example from one of the other stories i tell what i mean by reaching backwards to another store until which i i think more for my two people than hosam maher husein is the story of brandon mayfield, the oregon lawyer who ended up suspected of the train bombing in madrid because his fingerprints were similar to fingerprints that without on a plastic bag in madrid. so the agents looked at this. >> host: murphy's law investigation. if you look at it, it's one of the most our rent is mistakes you can imagine in terms of investigation. you go back and say how could you possibly connect a white lawyer in oregon with the bombing in madrid? and then you look at it and you look at it from the lens of the fbi agent who was making the connection, it's like, you know, you could see how those mistakes happen. >> guest: but here's how the mistake happen.
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first of all in the fbi identified the finger, one agent said that fingerprint is a lot like that the government. what you should be doing then, and with the fbi is doing now is to have a second person who doesn't know that the first person made the identification do that independently. but that didn't happen to later people assumed the first identification was right. when he told the standard, they so we don't think the. they never asked a spaniard what was the basis of their conclusion. >> host: just before, just to give an idea, we have a sense in the public that forensic science fingerprint in particular has been around for a century is a precise science. it is precise science in the sense that each of our finger prints issue meek and matching another thing of it is unique. however, the match is anything but a science. depends on how many points you compare to come how you, how similar they are in terms,
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that's why the physical comparison comes into play where there's not a perfect match. >> guest: you're right. it's an art matching fingerprints and that's one thing looking backwards we can tell about the mayfield case. again, a slide from the -- aside from the sloppy investigation, therefore what must have happened. so brandon mayfield didn't have a passport. he was an army veteran and having been out of this country and he didn't have a passport. they are thinking how could you got to madrid if he did have a passport? he must've had a fake passport. they submit an affidavit to the judging who want to arrest him as a material witness to find out what is going on because we don't think we're probable cause to charge him with a crime. one of the reasons that we're telling you that we suspect him is there's a likelihood that he is a phony passport. >> host: just to get the context, there is a lot of racing backwards here, you're
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right, that brandon mayfield is not just some lawyer sitting in oregon. he is a lawyer known to the fbi and the justice department, he had defended one of 9/11's defendants guess that he represented one of the people in oregon. to represent him in a child custody case. >> host: and jeffrey battle is -- >> guest: he ended up being charged with a terrorism crime. >> host: so it was within at least the universe. >> guest: that's a pretty big universe. >> host: but you can see how, you can see how a fingerprint, which is questionable in and of itself, suddenly triggers red flags and starts his whole process of reverse reasoning as you were. >> guest: i think the other thing that your comments adjusting is that the reason was also affected by a real
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anti-muslim bias. one of the things that the agents that suspicious that brandon advertise a business what they call the muslim yellow pages. the muslim yellow pages also advertised best western and avis, there's nothing suspicious about representing people who are muslim. >> host: to the fbi agent put this in affidavit apply for the material witness warrant? >> guest: yes. after the unification, in fact, brandon's religion can be converted to islam. he ended up converting to islam a. >> host: before after his experience and tribulations your? >> guest: that was before. that was one reason why he was suspected. >> host: us put into the affidavit. >> guest: that was considered to be suspicious of. >> host: and the judge granted a material witness warrant. he was held for six months in
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prison? >> guest: i don't remember. he was held for a period of time. i don't recall exactly what the courage was. that was just as a material witness. i think again the problem as you expect, the judge was not given enough information to really assess the facts because the agents were leaping to conclusions. what i think is the most troubling part of the story is, the spaniard place and we think you're wrong. no one ever listened to the spaniard police. they just thought they were so sure they were bright. >> host: you mentioned the reports, fbi now has procedures in place in order to hopefully prevent or at least double check. >> guest: be more careful and to verify fingerprints. so that the particular problem. >> host: you have to go to a third impartial. >> guest: i think what's more disconcerting is the way the fbi was willing to believe that brandon mayfield wasn't all. i think partially on the basis of his religion, like hosam maher husein.
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he said muslim companies in saudi arabia. he's contribute to muslim charities. that raises too many red flags by itself. let me tell you another person who's connected, this is the other part of my chapter -- >> host: when it comes back bolster coal, one of the associates that the associates interviewed of hosam maher husein that evening in idaho is a football player who was subsequently also arrested as a material witness, just like brandon mayfield. tell me the story. pick it up from hosam maher husein and talk us through the oppressed. >> guest: one of the people who hosam maher husein happen to know at idaho was another man who convert to islam. and this person is an american citizen. he was born in kansas. his father worked in a prison and his mother, i can what his
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mother did she work for for ibm for something. while he was in college he was apparently a great football player. i the great picture of him in his football uniform in the book as he won an award for rushing, he was a good football player. while he was in college and as often people do in college, he start to rethink his religious beliefs and decided to convert to islam. his grandfather was a minister. but still appreciate he was being a religious person. the government's investigation of hosam maher husein because they're interested anybody else who they thought might be involved in this nonexistent sleeper cell extended to abdullah because he is a muslim, and so somebody along the way hypothesized that he, too, was part of a sleeper cell. they didn't have enough evidence to arrest them. unlike transeventy was not an immigrant. they couldn't arrested for immigration violations. so what they did instead was
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they arrested him as a material witness. as you know the material witness statute of a summit to be taken into custody if they have really important test want to get out of town or a legal proceeding. if there's good reason to believe that they will ask can't and won't be available as a witness. >> host: what was the government come at all this had to be presented to a judge, depriving someone of their liberty. the judge had to make an independent and impartial decision as to whether or not one, this person really does have major information to get to the court, and second, whether there is a likelihood that he would flee the country or otherwise not co-op -- cooperate with a truth seeking process. so what was the government assertion with respect to both? >> guest: but we have said? we don't know because he never testified anywhere. he was never called to testify. i think that document is not public. we've never been allowed to see what was the allegations.
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but the best we can tell is there was a federal agent and spoke in his active account what they thought he could testify was on the charge whether not hosam maher husein was working as opposed to just being a student but he was never called we don't know what he would've said. on the cooperation, the fbi talk to abdullah, they talk to them while they were doing his investigation into been fully cooperative. he offered to help at the agent by giving them lessons in islam to try to help them better understand what muslims were up to them what they thought. he was being completely cooperative. he then had decided because he become very interested in islam today graduate study work in saudi arabia picks when he was arrested he was at the opera, dulles airport on his way to saudi arabia to continue his studies and all of a sudden he is arrested. >> host: how many days after the arrest of hosam maher husein
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izzy at dulles airport? >> guest: i don't recall what the time is. i'm sorry but actually have the dates in the book. i don't recall off the top of my head. >> host: i like to get these little details gets back he was held in custody for 16 days and shipped around the country and shackled in prison to prison. it was click has not been held as a material witness because, in fact, i believe it was robert mueller who report to congress he said the fbi had great success in arresting terrorists, and abdullah al kidd was one of them. it was perfectly clear he has not been arrested because they wanted his testimony. it been arrested because they thought he was a terrorist and didn't have the evidence to arrest him because they didn't have probable cause. >> host: after 16 days he was released. >> guest: he was released on a number of stringent conditions. he was not allowed to travel around a certain raise. he couldn't can continue his studies in saudi arabia. he had problems getting a job. his family falls apart. he was traumatized by the
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experience. never called to testify in the. as time went on he kept having nightmares. just horribly upsetting experience and he was never charged with anything. never any evidence that he had evidently thing wrong. so he finally decided to bring a lawsuit against john ashcroft for using the material witness statute for arresting him. it ended up, that case ended up, it went up to the supreme court and he was dismissed against john ashcroft on the grounds he was immune. however, this is in connection with the brandon mayfield? there were connections because the affidavit that was given to the court that had been filled out by various fbi agents also had some very misleading things to say. for example, one reason why they said we think he will abscond, they said he bought a $5000.1 class one-way ticket to saudi a really. he hadn't. he bought a $1700 round-trip ticket to saudi arabia.
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he offered the fbi his cooperation. that part of the lawsuit continues against the fbi agents for being very machiavellian. they thought, disrupting what they thought was a sleeper cell is going to justify the means of being highly misleading. >> host: this is a good interesting segue into the more broader aspect of these various stories, which are very compelling themselves, and regardless of what you think about how believable, but the evidence ultimately leads, it's hard to go away with these things, with these cases, that people were not mistreated. and so i think -- >> guest: if i could just tell you, before you continue with your thought, abdullah al kidd also had serious allegations that he'd been mistreated while he was incarcerated. effect ended up having a lawsuit settled because of the
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conditions under which is being held and mistreatment. >> host: that was not part of the lawsuit. >> guest: not a part of the same lawsuit. that is a separate lawsuit. that has been settled. >> host: but in dismissing the lawsuit against attorney general ashcroft was the pretext, and the claim is a good one which is hate, whatever you may believe i know, and what ever congress believes i should be, what my legal obligations are, the support statute, you can't use as a pretext in order to hold me for other grounds. if i'm speeding, fully overspeed. don't pull me over for a broken tail light, classic argument. justice scalia vote the efficient and fair administration, that requires to focus on the facts at the time of the decision. that is the time it the judge granted a material witness warrant. not on the motive of the
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arresting officer. because otherwise the loss would be broken and we would always questioned the motives of the arresting officer. sounds to me a fairly reasonable macro systemic rule of law, and despite that justice in one particular aspect, looking at a system that level, that's not right, don't you think? >> guest: no, i don't, sorry to disagree. justice scalia has been wrong about this for a long time. >> host: i'm not surprised with that. >> guest: written opinions i disagreed with. it doesn't matter if you're being arrested on a pretense, but even given those, the attorney general making this policy and inviting law enforcement officers around the country to use the material witness that we have never intentioned consummate as a witness, i think that's a different matter and i think that's what troubles me is not
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just what happened to hosam maher husein and what happened to abdullah al kidd, hosam maher husein was confronting the first amendment. this is trying to do an end run around the fourth amendment. you can't arrest people and to show probable cause. and if the chief law enforcement agency in the country is saying to everybody, but it's okay because you can pretend. you can use this as a pretext i think that's a lot more serious than individual officer pulling over for broken tail light when you really want you for drugs. >> host: would it not be independent and intervening action of the judiciary? that is initially, of the judge who approved the material witness. >> guest: the problem there again, one reason why the case was removed from john ashcroft is john ashcroft was not personally implicated. the aclu which was representing abdullah al-kidd had the theory the judgment of what issue that work if you been told actual facts.
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if, in fact, they been given the whole truth until that abdullah was willingly perfectly to dash of perfectly willing to help the fbi, they would have done that. >> host: it is an adversarial hearing. >> guest: , i'm sorry, i don't recall. i am mostly somewhere with the case afterwards. >> host: so one answer, one inch is, one answer is we should be much more vigilant. whatever issues, whatever our differences of opinions are, the proper use of mature witness, the statute or secondary liability for new shoes or alleged misuse of it. the one lesson is we should be much more vigilant, we gained the system, the judge, prosecutor and defense attorney, be much more vigilant in the underlying factual bases for such a material witness warrant. because the consequences are pretty dramatic picture can be put in jail for up to a year
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without possibility of bail, essentially and people forget, the material witness warrant, it is the same, jail. >> guest: and a horrible experience. but i think it certainly is true that we want to be more careful about how we use all these powers like a material witness arrest and prosecution of hosam maher husein for materially supporting terrorist that was not based on much. it's one thing to say okay, we have these enormous dragon powers but we'll just use them real carefully. to me that's not enough of an answer. once you set it in place, what you say we will allow the attorney general to say we can use a material witness arrest warrant to arrest somebody, to get around the fact we don't have probable cause to arrest them, that is itself a problem. i think it invites abuse. and the prosecution of hosam maher husein, a lot of people i
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think think there's nothing wrong with giving the government these enormous dragon powers and the two fishermen who support laws are -- humanitarians, then your times. it's one thing to say let's be careful not to prosecute people in a way that violates the fifth amendment that in your existence of the statute that invites prosecution, allows prosecution of people forgetting managing a to someone the government thinks is a terrorist or for posting links on a website, it seems to me it has a chilling effect. people start worrying about should i really check out the biography of osama bin laden? what if it can become suspicious of me. >> host: the support statute is clear. there has to be either a designated terrorist organization or a specific intent to give to terrorism. you're right, and we don't know, ordinary citizens don't ordinarily know what our
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positions are listed, but, you know, you can give, you can take it as fairly good given, that if you're giving money to a designated terrorist organization you should be punished. the trant aid has -- >> guest: wait a minute. we're not just on the giving money to a terrorist organization. them to support laws were passed to expand at the patriot act. one of the things described as providing expert advice or assistance to terrorist at a used it look like it was money or guns. now expert advice or assistance can include humanitarian aid, that was an exception that was specifically left out. so that means there was an aclu lawyer in sri lanka. human over vacation. while he was there the tsunami came. at the time of the tsunami, a fifth of sri lanka was being controlled by the tigers. if you were a relief
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organization and you want to get through to the people have been affected by the tsunami, you had to do with the tigers because they were the government for a fifth of the country. >> host: and the department of justice position is that whatever money that the lgt or what ever other organization does not spend on refugee camps, they can spend on, because the money is expendable. so, you know, we why the constitution carveout, force activities that the government cannot prosecute as a matter of law. but otherwise money is -- >> guest: it's not only money. not all support is fungible. the supreme court is made the first amendment carveout enormous. here's another example. there's a group called humanitarian -- >> host: let's hold off on that because we will go through that discussion, because that was a decision last year by the supreme court interpreting exactly this authority regarding
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the constitutional recount statute will do that right after the break. thank you. >> guest: thank you. >> host: susan herman, president of aclu and professor of law school. the book is "taking liberties: the war on terror and the erosion of american democracy." we were talking about the metro support statute and the criminal therefrom, giving money to the destiny church organization is illegal. the statute has been extended to include nonmonetary aid and expert advice and assistance, including providing your own
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efforts rather than recruiting others, your own efforts in ranking expert advice and assistance in order to fall within the avenue of the statute. the question is what if you give money or assistance to non-terrorist activities of a designated terrorist organization? a case they came down last year said that money is fungible so, therefore, giving money to embark of an organization is supporting another part terrorist activity. >> guest: a problem with that theory is that this goes way beyond money. the humanitarian law project wasn't giving money to anybody. and i think that the idea, if you're giving money or guns to terrorists but that's a crime but, of course, that's a crime but it's also a crime of conspiracy. let me give you a couple different examples. the humanitarian law project, a
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group of people really interested in promoting peace, one of the things they set out to do was to try to talk potential terrorists or terrorist groups out of committing acts of terrorism by showing them how they could use peaceful dispute resolution techniques like going to the u.n. with their grievances. so the humanitarian law project is working with the kurds in turkey. as you know, the kurds in turkey have had incidents with the turkish government. so what they're trying to explain to people was that instead of trying to terrorism there were other ways they could get their grievances addressed. when the patriot act expanded the material support laws to go way beyond money or guns, to cover any sort of expert advice, they started to worry about whether they could be subject to prosecution, whether they were having a problem telling the donors to support them, whether the dose would be considered supporting an effort that was getting too close to terrorists. after many years of litigation
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back and forth in this california federal courts, the case into in the supreme court. to my great dismay the supreme court said doesn't violate the first amendment. they said first of all yes, the expert advice is broad enough, that term is broad enough to cover time to terrorists not to be a terrorist. and then in answer to the question what about the first amendment, the court said this is preventing people from speaking but what he speak to been on what you have to say. congresses did in the statute is the terrorists have to be radioactive, so their three was this isn't money that is fungible because there wasn't any money. to me the course and to was far-fetched. they said okay, the valuable services training and using alternative dispute methods. so they don't have to come up with her own training using dispute resolution methods that brings up sources to use elsewhere. but it gives them legitimacy. this is terrifying. let me take one step further. at the oral arguments, of any
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taken was at the time solicitor general so she was argued the case and the case and ensure this is not an answer she thought of on the spur of the moment. one of the justices said to her, it's broad enough to cover the mentoring law project, tried to teach terrorists not to be terrorist, could also cover a lawyer filed a brief on behalf of the church group? >> host: which is one of the facts in the case itself. >> guest: and she said yes, yes, it would cover lawyers. i think that's just too broad. the government just has the power over everybody come to think that barack obama is going to prosecute lawyers or the red cross or eric holder? no, i don't but i think the senator mitchell and i think -- >> host: just to be fair. i do agree that the statute is a very broad. and the supreme court recognized this, this is about as broad as the statute it as has seen. nevertheless, it is not think of it as constitutional audit space. to be fair, if there are unconstitutional applications,
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indeed used to punish speech, the unconstitutionality of that application is always the defense just that one can always raise the first amendment defense. i did not work so well for hosam maher husein. plus i think the discounts the fact the statute does harmed by its mere existence. again, i think a lot of people have relaxed about the patriot act anything that george w. bush is not in the white house because they do think that barack obama is going to be looking for people. but the power is there. the statute of limitation is going to allow people to be prosecuted by some future administration that things, without all different presence in the future. the president obama and eric holder don't really determine the action of all people and agents below didn't. >> host: but they have made, they are responsible for the own actions. part of the compelling part of
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your book is the very thinly veiled system that you portrayed, candidate obama is very different from president obama, and that by and large it has a continuation of the bush administrations policies. from my perspective i think there's very little opportunity for a just and in our strategy on terror. and it's actually a laudatory recognition of response the government and and that the president has seen, from the perspective. what is your perspective? >> guestgasquet eyadema disappot was not veiled. one thing that should help us when the president is taking measures that seems to me were too broad big idea was the executive branch has have all this power. you can have the checks and balances you're supposed to because congress is to public. they can't know enough. courts don't know enough and, therefore, the whole theory of the patriot act and all the other post-9/11 regiment was the
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present has to do it in secret and we have to just have the president. >> host: there is a different there. as a whole lot of post-9/11 policies. were done unilaterally and in secret by the present. the patriot act is not one of those. >> guest: at the u.s.a. patriot act provides all sorts of the for the president and executive agencies to avoid, all the surveillance provisions, chief point is let's let the courts have much less say, let's let the agencies decide for themselves when want to go into the library into the library records. >> host: but on with congress' acquiescence and authorization. >> guest: that's the problem. you're right, i had a brief dash that i had a beef with congress. they really add to get the angle and i think they've gone way too far in taking a course out of the picture. to me this is not my own, this is the constitution.
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we have all these checks and balances because when you give an enormous amount of power to one part of the government to the president and executive agencies without the opportunity to have checks and balances, and a lot of those powers are being exercised in secret, that's just a recipe for abuse. let me give you one example -- >> host: why hasn't president obama and attorney general holder recognized it and agree with themselves? track to i will give an example. when president obama specifically said during his campaign that no more national insecurity. as you know, national security letters were expanded during the patriot act. and it allows the fbi other agencies to go into, to get certain kinds of records, telecommunication providers, internet service providers, librarians, just on their own say so that no court order at all. this to me is emblematic of the kind of patriot act is doing. let's make it easy for the government to get more
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information of whatever information you want. let's take the courts out of this. >> host: i'm sure you'll agree with this. the context is the u.s.a. patriot act did not create national security dash industry in 1988 by congress and used in that regard. -five come your, did expand the categories in which they were being used. and clarify the procedures that they were to use. and just again to lay out all the facts. this provision has been used. horribly abused. there was an inspector general report of the fbi in 2007 that said, the issues of national security letters without will probable predicate, without the proper supervision. there's no question it has been abused. nevertheless, congress has reauthorized it with some state courts making clear judicial
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review what was implicit before. and i guess the recognition is that there's always potential for abuse of some law, and you know, the constitution is there. the constitution is violated it doesn't mean it makes it -- >> guest: i have to disagree with it. it seems to me what happened here, i'm not letting congress on the. i completely agree with you that congress is supporting the executive branch and the ability of this enormous power. a couple things happen with the national security letters is first of all, they hadn't been used that often. and after 9/11, after the patriot act they started using it hundreds of thousands of times. an incredible amount of --.org not just that. they start you because the fbi want to use them. one of the theories the patriot act was a good substitute for the real involvement in the courts in oversight by congress was to have higher officials within agencies, have to sign off on important things and, therefore, the agency would
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police itself. the inspector general report you're describing in 2007 look at what happened when fbi was using his own regulations and on interim structure as supervisor. what they concluded, the fbi's own counsel called this an effort report card, they included -- concluded there were thousands of -- i think it into two or 3000. >> host: i was on vacation at a time when i saw that report. >> guest: its stunning. >> host: the real question is what do we do? >> guest: this is like can we fix the brandon mayfield case by being more careful with fingerprint? of course we should take the small corrections. but to me what this story is about is the framers were right that if you have any knows about the power being executed, exercised by one branch of the government without oversight, that is a recipe for abuse. and that's a lesson i apply to a lot more than just okay, what
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are they exactly doing about the national security letters right now? so you're asking why doesn't president obama change all of this? it seems to me that once you're president, i think the american people have a very unrealistic expectation that the president promised to keep us safe and keep our safety. the 9/11 commission said no president can promise the american people that. you can do your best. you can prevent some things but you can't guarantee safety. i think the problem is -- >> host: and i think the american people's credit they accept the fact we're in a new normal where absolute safety is no longer a realistic expectation after 9/11. >> guest: that maybe to some extent but i think people have accepted an appreciation in government power. >> host: i will read a passage, beautifully written passage, but also very, very
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depressing, the passage from your book. and i'm sorry, my review copy is not the same as yours. i'm going to flip around to it but i will read it right here. again and again the executive branch was tempted by secrecy to exceed its powers, which we said before, again and again congress failed to ring, this is what you fulfill its responsibly to executive agencies action. but then i ask myself, who is left? again and again the court discarded serious constitutional challenges to the president, and congress' actions were trumped up procedure reasons. so, you have managed here today nancy a. all three branches of our government.
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all three branches are complicit, if you will, in the erosion of our liberty and the target of your concern. what do you think? >> guest: let me be clear in terms of, i'm glad you read the passage but there's lots of in the book and there are some judges who did rise to the occasion. they are several opinions i think were admirable. but here's the problem. let me give you an example. one of the things that happened, as you also know, president bush even though the patriot act had given him all sorts of powers he could choose to do surveillance and other things, he wanted more and, therefore, he start the national security agency without going to congress. terrorist surveillance program. that would offer soviet before
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the new york times expose this was going on. people within the agency were so troubled by the fact that all this, they had all this power and he was secret and nobody knew what they were doing. so when that program was exposed, congress again agreed, the president went to congress by which you should in first place. congress is okay, and they didn't even a little more power than he claimed. so what about the courts? i think we are accustomed, cut our teeth during the civil rights era, to think the president and congress are doing something unconstitutional, the courts will be there to save us and uphold the constitution. so the aclu brought a lawsuit challenging the national security agency, claiming that it was a violation of the fourth amendment. and the plaintiff in this case were a lawyer who was representing a detainee in guantánamo put relatives in yemen. the relatives would no longer talk to her on the phone or in the winter because they weren't
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afraid the government might be listening and you might end up on the no-fly list, or the new? they didn't want to attract attention. there were scholars were try to talk to moderate around the world. that i do. the employer has to fly to human to interview witnesses and spent a lot of money. so we won that case in the district court, despite the administration arguing state secret privilege, nobody could know about it. what happened was the sixth circuit court of appeals, the plaintiff had missed him. they said the only people who can challenge secret surveillance like this in courts are people who can show that they themselves had been under surveillance. now, to me that is a catch-22. the whole point of secret surveillance is you don't know you're under secret surveillance. the challenge the people who have found out somehow that the government is spying on them -- post that when they're prosecuted. >> guest: then they are a criminal defendant and been the case doesn't look so attractive.
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the course to look at and say oh, well, it's interesting -- >> host: it was one case where it was even as we disclosed. so there was standing there because -- >> guest: there was a standing. what happened in that case, one foundation, did find out that they've been under severe because somebody in the government had mistakenly sent them a top secret law, a telephone log that showed that employers have been he stopped on by the government. however, that document is classified. so when it came time to bring the lawsuit, they wanted to claim standing, and the government said no, you can't rely on that document because you're not supposed to see. what the district judge funded was he found that various governments peace, he found his stand with our light on the document. >> host: so they were using state secret?
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>> guest: i'm not sure if it was a classification or exciting what, but the judge decided, he decided instead of taking on that argument justifying of the ground. it was just the case the circuit said last week in aclu challenge to the successful statute, to fight the mms act where the court lets stand a panel that we do have stand up but this is one example. other cases as you know have gone on state secret privilege. i don't talk in my book about guantanamo and torture. i'm only trying to talk about the things that are said ordinary americans. there's another story of the aclu has had a number of clients who have a credible claims, not a single one of them had a day in court. every single case has been dismissed. >> host: so getting down to where we are and what we should do about it, you alluded a little to this.
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there has been circumscribing of public, concern for civil libertarian abuses in the last decade. weeding this book and giving it its full benefit of the doubt, it does depress me because what you said isn't true, you have a very bleak world where all of our liberties are being suppressed. the president is driving. the congress is playing, the courts are too scared to stand up to the political branches. and only have left is the good sense of the people, but in the good sense of the people have been told by the fear of the lack of 10 years, or by the government, that no liberties is being eroded. and the only hero is, you know, the very often, and often
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litigated but somewhat, you know, unsuccessful, and attack with the aclu because everyone is out against duke in order to protect the liberty. that's a fairly -- >> guest: let me say first of all, as bad as them of aclu i don't see it was the only the aclu. there were a lot of of individuals within it. it's not the minor thing to say it's the american people. senator green has referred to my book as a wakeup call. i think what i'm trying to do is to give the american people some information. here's two pieces of good news. one piece of good news is the constitution is very resilient, has a lot of pieces. the first story i was telling about hosam maher husein, i think it was a case the executive branch using the statute that had been given by congress went after some of the reasons that think were inconsistent with the first amendment. the judge failed to do anything about it, but we have a right to
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retry. these ordinary citizens of idaho stood up and defend the constitution. freedom of the press, they publish this for in new time telling us about what was happening with the nsa searches. the number of ways in which the constitution protects itself. >> host: but the alternative story may well be that yes, you know, they are, there are concerns about liberty. there are also concerns about security, and you know, you have been, the new times are just wrong and that the american people should need not be woken up. we just happen to disagree with your view of the world and your vision of the constitution. after all, the reason why congress reauthorize attribute surprise and all the vacuum out was because the american people supported like 78%-85% in terms of the polls. >> guest: what i would say to
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that, and i think this is the crux of all think i think the american people have been left out of this debate when the administration started with this mosaic secrecy. the idea is you can to anybody about anything because otherwise if the terrorists find out that we are planning to deport this particular person, that might help them. victory was so overblown, it went way too far and there's this thing for secrecy that has followed all these measures through, and to me the story of the national security letter is a great example of what's happened is what sort have everything behind closed doors. i think a lot has been hidden from the american people. we just barely found out about a number of things. i think if the american people a good conversation about some of these measures, i'm not so sure they would agree. what happened with it patriot act was it was enacted 10 weeks after 9/11.
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